Crimea and unilateral declarations of independence

People hold Russian flags as they celebrate the results of the referendum on Crimea's status at the central square [EPA]

In remarks he gave in Washington, DC, on March 4, US President Barack Obama said something quite revealing about the role of international law in the Crimea crisis: "There is a strong belief that Russia's action is violating international law. I know President Putin seems to have a different set of lawyers making a different set of interpretations, but I don't think that's fooling anybody."

Obama was, in effect, revealing international law to be a discourse of power between competing cadres of international lawyers. Lawyers have often said that hard cases make bad law. But with international law, it seems, "strong belief" makes international law.

Crimean voters overwhelmingly cast their ballots on Sunday in favour of independence from Ukraine and union with Russia. What does international law have to say about this? Do the people of Crimea have the juridical capacity to secede from Ukraine and unite with Russia? The jurisprudence of the International Court of Justice offers some insight.

Putin signs Russia-Crimea treaty

The Kosovo model

In its 2010 advisory opinion in "Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo", the International Court of Justice (ICJ) was asked by the United Nations General Assembly whether the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo was in accordance with international law.

Members of these Provisional Institutions had unilaterally declared the independence of Kosovo in mid-February 2008. The ICJ held that general international law does not per seprohibit unilateral declarations of independence.

But the ICJ made an important caveat in "Kosovo". When a particular unilateral declaration of independence had been, or would have been, "connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory nature (jus cogens)", international law would not recognise it. Indeed, it would condemn it.

The ICJ gave the example of northern Cyprus, where Turkish Cypriots had unilaterally declared their independence from Cyprus and the formation of the so-called Turkish Republic of Northern Cyprus in 1983.

This had all been made possible, of course, by Turkey's armed intervention in Cyprus less than a decade earlier in defence of, as Ankara saw it, besieged Turkish Cypriots on the island. This move was promptly condemned by the United Nations Security Council.

Let us hope that international law does not prove to be similarly "hollow" in Crimea, even if the Security Council will never condemn Russia's armed intervention there.

Although international law contains a prohibition on the threat or use of force, it admits of two exceptions: Self-defence (according to article 51 of the United Nations Charter) and when force has been authorised by the Security Council acting with respect to a threat to the peace, a breach of the peace, or an act of aggression.

There has been no suggestion in the Crimea case that the Security Council has authorised Russia's armed intervention. This leaves self-defence as the only potential justification on the facts.

Russia has argued that its armed intervention in Crimea is indeed justifiable on self-defence grounds. It has claimed that its actions have been on the basis of self-defence, specifically in defence of (Russian) nationals abroad.

Defence of nationals abroad is a controversial permutation of the self-defence exception. This is so both in theory and on the particular facts of what may or may not have been taking place against Russian nationals in Crimea prior to Russia's armed intervention there.

Russian veto

The more interesting point relates to the fact that Russia wields a veto in the Security Council. This means that it can block any draft resolution that is tabled there, a power that it used this past Saturday on a draft resolution that would have condemned the pending referendum in Crimea.

The effect of all of this is that the Security Council, which United Nations Member States have endowed with primary responsibility for the maintenance of international peace and security, will never adopt a resolution condemning Russia's armed intervention in Crimea.

In turn, assessing whether the referendum results in favour of independence from Ukraine and union with Russia can be definitively said to be "connected" with an illegality on the scale that the ICJ referred to in Kosovo will remain perpetually indeterminate, and unresolved, at least from the perspective of the Security Council. And the Security Council is the only principal organ of the United Nations that can adopt decisions that are legally-binding upon United Nations member states.

This might explain President Obama's appeal to the mystical power of "strong belief". But that is just that, "strong belief".

Recourse to the metaphysical may have something of an emotional appeal, but it is rarely a sustainable explanation for geopolitical developments when it cannot be reconciled with events on the ground and when the Security Council is deadlocked.

Perhaps more than anything, this past Sunday's referendum in Crimea and international law questions related to it are important reminders of something that English historian EH Carr warned about some decades ago: The "hollowness of ideas in face of armed force, of democrats when confronted with soldiers".

Let us hope that international law does not prove to be similarly "hollow" in Crimea, even if the Security Council will never condemn Russia's armed intervention there.

Robert P. Barnidge, Jr. is Lecturer and Coordinator of International Relations, Webster University, Department of History, Politics, and International Relations. His research focuses on public international law, international humanitarian law, state responsibility, the Israeli-Palestinian dispute, and terrorism. Most recently, he published the edited volume: "The Liberal Way of War: Legal Perspectives".